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Anderson v. Anderson.


upon, which, instead of being in favor of the Defendants, is against them.

Then there is the case of Elliott v. Lord Minto ("). The Petitioner, who was the heir under a settlement made by W. Elliott, of a Scotch estate, filled a bill to have his estate exonerated from a heritable bond by the application of personal estate in England. The Vice-Chancellor said the question must be determined like every other question respecting real estate, by the law of the country where the real estate was situate, and could not depend upon the law of the country where the personal estate happened locally to be; that all this Court could do would be to refer it to the master to inquire what was the law of Scotland to be applied to the case, which could not be conveniently done in a complex case of equitable circumstances; and as it appeared that a suit and cross suit were already commenced in Scotland, the Court ordered the case to stand adjourned till the determination there.

That has no application to this case. There there was one Plaintiff and one Defendant. Here the object is to obtain discovery; in the other case the circumstances apply to a different state of things altogether.

This Plaintiff is entitled to an answer if he can get it from these Defendants, who are merchants carrying on business in this country.

I must refuse the motion with costs.

Solicitor for the Plaintiff: Mr. Kearsey.
Solicitors for the Defendants: Messrs. Druce, Sons, & Jackson.

V.-C.B. Jan. 19, 23, 28, 1872. 381)

[Law Reports, 13 Equity Cases, 381.]

[1869 A. 117.] Will Republication – 1 Vict. c. 26, 8s. 15, 34. Testatrix by her will gave a share of her residuary real and personal estate to B., and one of the attesting witnesses to the will was B.'s wife. By a codicil,

(') 6 Mad., 16.


Anderson v. Anderson,


which was attested hy other witnesses, testatrix, after a direction to her execu tors to allow an extended time for payment of a debt due to her from one of her legatees, confirmed her will in other respects :

Held, that the duly attested codicil had the effect of republishing and incorpo. rating the will so as to render the gift to B. valid, notwithstanding attestation of the will by B.'s wife.

HANNAH ANDERSON, widow, by her will, dated the 10th of December, 1868, gave, devised, and bequeathed all the rest and *residue of her estate and effects whatsoever and where- (382 soever unto and to the use of her son George Anderson and Henry Letts, whom she appointed executors and trustees of her will, upon trust to sell or convert, call in, recover, and receive such parts as should not consist of money, and to divide the net residue (except the five houses thereinafter mentioned) into five equal parts, one of which fifths she bequeathed to each of her sons, Edward Charles, Joseph, George, Thomas, and the remaining fifth to her daughter Charlotte Tolhurst, for her sole and separate use.

As to the five excepted houses, three of which were freehold and two leasehold, the sale was to be postponed until after the death of her daughter Charlotte, unless an advantageous opportunity of disposing of them should occur. The net annual income of the houses, or the net annual interest of the produce of such parts as might from time to time be sold, was to be paid unto Charlotte Tolhurst, during her life, for her separate use, without power of anticipation; after the death of Charlotte, testatrix directed the five houses, if not sold previously, to be sold, and the net produce, after payment of all expenses, to be divided into four parts, one part to be paid to Edward Charles, one to Joseph, one to George, and the remaining fourth to Thomas Anderson, to whom respectively she bequeathed the same.

The will was attested by Jemima Fishenden and Hannah Anderson, wife of George Anderson, the executor and legatee named therein. By a codicil to her will, dated the 22d of January, 1869, and duly attested by other witnesses, testatrix authorized her executors to allow her son Thomas such an extended time to pay what might be owing to her from him, and not bequeathed to him, as they should consider advisable, and confirmed her will in other respects.

A caveat having been entered on behalf of the plaintiff, who was a son of the testatrix, but excluded from all benefit under


Anderson v. Anderson.


her will, against the grant of probate of this will and codicil, issue was joined in the probate proceedings, and on the 6th of November, 1869, when the cause came on to be heard in the Probate Court, the Judge, by his final"decree, pronounced for the form and validity of the will and codicil, of which probate was granted on the 23d of November, 1869. 383] The case made by the bill was that as one of the attesting witnesses to the will was the 'wife of George Anderson, one of the legatees, all gifts of real and personal estate in favor of George Anderson were null and void, and the property therein comprised passed, as undisposed of, to the heir-at-law and next of kin respectively of the testatrix.

Mr. Fry, Q.C., and Mr. Key, for the Plaintiff, referred to sect. 15 of the Wills Act (1 Vict. c. 26), and contended that the codicil had not the effect of giving validity to the bequest to George Anderson.

Mr. Willcock, Q.C., and Mr. F. T. White, for Defendants, contended that the effect of the codicil, which was duly attested and expressly confirmed the will, was to republish and incorporate the will in the codicil, making the will operate precisely as if it was executed on the day of republication. By thus giving that which was pro tanto an unattested instrument the effect and validity of a duly attested testamentary instrument, the defect in the gift to George Anderson arising from his wife having been an attesting witness to the will, was cured, and he was entitled to his legacy.

The difficulties which had arisen in some of the cases of identifying the particular instrument referred to in the later and duly executed testamentary instrument, did not here occur, will and codicil had both been admitted to probate.

They cited Habergham v. Vincent (); Doe v. Walker (0); In te Earl's Trusts (); Allen v. Maddock (1); In the Goods of Lady Truro (); 1 Vict. c. 26, ss. 15, 34.

as the

Mr. Fry, in reply :Words of reference must be construed in their strict and pri() 2 Ves., 204, 228.

12 M. & W., 591, 600. 4 K. & J., 673. ( 11 Moo. P. C., 427.

() Law Rep., 1 P. & D., 201.


Anderson v. Anderson,


mary sense, and when a codicil refers to a will, that must be a will which satisfies the requirements of the Wills Act : Croker v. Marquis of Hertford ('); Wigram on Wills (%). If there is no document legally satisfying the requirements of a will to which the codicil *can be held to refer, then, looking into the [384 extrinsic circumstances, papers purporting to be testamentary, though not so in the strict and primary sense, may be rendered valid by the duly attested codicil. But this rule of construc tion does not apply when the codicil purports to confirm as a will that which is not legally a will. For the purpose of seeing whether the will referred to is valid we are entitled to look at the attestation. Finding that, from the way in which the will has been attested, the gifts to George Anderson are rendered void, we say that the codicil has not the effect of curing the defect or rendering the particular gift valid.

Even if the decision of the Court should be against us we are entitled to our costs of obtaining the opinion of the Court upon a doubtful point of construction : Thomason v. Moses (3); Lee v. Delane (4); Morgan and Davey on Costs ().

Jan. 27. SIR JAMES Bacon, V.C. :

The question which arises in this suit is, I believe, entirely novel; the subject to which it relates is unquestionably of great importance, involving, as it does, a very valuable provision in the Statute of Wills, by which the law as it previously existed has been greatly altered and improved. Before the statute any beneficial interest given by will to the persons by whom such will might be attested was null and void; but the attesting witnesses were not disqualified from proving, as witnesses, the due execution of the testamentary instrument : 25 Geo. 2, c. 6. The existing statute, keeping in view the principle of public policy which is obviously involved in the former law, has extended its operation; and by the 15th section it is enacted, “ That if any person shall attest the execution of any will to whom, or to whose wife or husband, any beneficial devise, legacy, estate, interest, gift, or appointment of or affecting any real or (%) 4 Moo. P. C., 339, 363.

Page 18. ( 5 Beav., 77. (1) 4 De G. & Sm., 1.

(9) Page 67.


Anderson v. Anderson.


personal estate, shall be thereby given or made, such devise, legacy, &c., shall, so far and only as concerns such person attest385] ing the execution of such will, *or the wife or husband of such person, be utterly null and void ; and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift or appointment mentioned in such will.” The Plaintiff's claim is founded upon that provision. [His Honor, after stating the case, continued :-] Upon this very simple state of facts the Plaintiff has contended that the provision of the statute to which I have referred applies in direct terms, and that by the effect of it all such interest as George Anderson would have taken under the will is forfeited, and the testatrix must be held to have died intestate as to so much of her estate as George Anderson would have taken according to the tenor of the will, if his wife had not been one of the attesting witnesses.

The Defendant, on the other hand, insists that the will and codicil together form one, and but one, testamentary instrument; and that the object and effect of the codicil was to repeat and confirm the bequests contained in the will ; that its operation was to incorporate the will with the codicil; and that the latter instrument having been duly executed by the testatrix, and attested by unobjectionable witnesses, neither the letter nor the spirit of the statute is infringed; that all the requisites of the law are complied with ; and that there is no foundation for the Plaintiff's suit.

Now, in order to decide the point which is raised, the first question to be solved is, what is the will of the testatrix ? The statute (sect. 9) enacts that no will shall be valid unless it be in writing, signed or acknowledged by the testator in the presence of, and attested by, two witnesses. If the codicil in question can be held to be the will of the testator, these requisites are complied with. In the course of the argument reference was made to several cases, the most important of which, as well as the most recent, appears to be Allen v. Maddock ('), in which the testatrix, having made what purported to be a will, dated in December, 1851, but attested by one witness only, had afterwards, in September, 1856, executed a testamentary paper,

(") 11 Moo. P. C., 427.

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